Voth v. Chrysler Motor Corp.

• Decision Date: 24 January 1976
• Docket Number: No. 47822,47822
• Citation: 545 P.2d 371,218 Kan. 644
• Parties: , 93 A.L.R.3d 680, 18 UCC Rep.Serv. 954 Dean VOTH, Appellant, v. CHRYSLER MOTOR CORPORATION, and Chrysler Corporation, Appellees.
• Court: Kansas Supreme Court

Page 371

545 P.2d 371

218 Kan. 644, 93 A.L.R.3d 680, 18 UCC

Rep.Serv. 954

Dean VOTH, Appellant, v. CHRYSLER MOTOR CORPORATION, and Chrysler Corporation, Appellees.

No. 47822.

Supreme Court of Kansas.

Jan. 24, 1976.

Syllabus by the Court

1. In considering a motion for summary judgment under K.S.A. 60-256 pleadings are to be liberally construed in favor of the party opposing the motion.

2. Under the provisions of K.S.A. 84-2-725(2) a cause of action for breach of a contract of sale accrues when breach occurs, regardless of aggrieved party's lack of knowledge of the breach.

3. Breach of warranty occurs when tender of delivery is made except where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance. In such case the cause of action occurs when the breach is or should have been discovered. (K.S.A. 84-2-725(2))

4. In order for a warranty to extend to future performance, the warranty must be explicit.

5. In an action based upon alleged breaches of an express warranty to repair or replace and an implied warranty of fitness and merchantability of a new automobile, wherein the action was commenced more than four years after tender of delivery, it is held-that such warranties did not explicitly extend to future performance and that the discovery of the breach did not require awaiting the time of such performance.

Douglas J. Moshier, of Coombs, Lambdin, Kluge & Garrity, Chartered, Wichita, argued the cause, and Donald E. Lambdin, and Ted L. Peters, Wichita, were with him on the brief for appellant.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Frederick L. Haag, Wichita, was with him on the brief for appellees.

KAUL, Justice:

This is a personal injury action seeking damages for alleged breaches of express and implied warranties in connection with the purchase by plaintiff-appellant of a new Chrysler automobile on August 8, 1969.

The question presented is whether plaintiff's action is barred by the statute of limitations in contracts for sale set out in K.S.A. 84-2-725 of the Uniform Commercial Code. Plaintiff appeals from an adverse ruling entered on summary judgment by the trial court. The record before us consists only of plaintiff's petition, defendants' answer, motion for summary judgment, and the journal entry of the trial court's ruling thereon. The issue before us is of first impression.

The gist of plaintiff's petition is set forth in paragraphs 5, 6, 7 and 8 which read:

'5. Said automobile was expressly warranted by defendants to be safe for use with the automobile's air conditioner and heater running and with the windows shut for extended periods of driving.

'6. The automobile was also impliedly warranted to be fit for the purpose for which it was purchased and to be of merchantable quality.

'7. The automobile as set out above was neither safe for use with the windows closed and the air conditioner or heater operating for extended periods of driving, nor was it fit for the purpose for which it was purchased, nor was it of merchantable quality, and the aforesaid express and implied warranties were breached. As a consequence of the breach of warranty, plaintiff inhaled large amounts of gasoline fumes and contracted lead poisoning and has suffered great bodily harm, pain and suffering, insomnia, nausea, vomiting, unconsciousness, vertigo, headaches, numbness of body and limb, pallors, tremors, low blood pressure, loss of memory, loss of ability to effectively communicate and has otherwise been prevented from transacting his day to day business. Plaintiff has incurred medical expenses in excess of $1,500.00 and will incur future medical and rehabilitative expenses in an indeterminate amount, but which will be shown at time of trial. Plaintiff's ability to earn a livelihood has been grossly impaired and thereby he has suffered great loss of income and incurred future loss of income in an indeterminate amount, but which will be shown at time of trial.

'8. On or about July 2, 1970, plaintiff discovered that the aforesaid implied and express warranties were breached and gave timely notice to the defendants thereof.'

The petition was filed on June 27, 1974, some four years and ten months after the automobile was purchased on August 8, 1969, and just five days short of four years after discovery of the breach on July 2, 1970, as alleged in paragraph eight of plaintiff's petition.

Defendants answered plaintiff's petition, pleading, among other defenses, that plaintiff's claim was barred by the statute of limitations. After filing their answer defendants filed a motion for summary judgment.

The motion was heard on October 16, 1974. No record was made of the proceedings, but plaintiff has included a narrative statement in the record on appeal which describes the proceedings in this manner:

'. . . On the 16th day of October, 1974, the Motion was heard in chambers in Division 2 of the District Court of Sedgwick County, Kansas, the Honorable Howard C. Kline presiding. Plaintiff argued that the applicable statute was not 60-512, but Kansas Statutes Annotated 84-2-725, wherein the limitation was four years. The plaintiff further argued that because of the warranties, both express and implied, and the nature of the defect in the automobile itself, to wit: a plugged gasoline tank vent tube which caused raw gasoline to be spewed upon various parts of the undercarriage of the automobile, the vapors of which were subsequently gathered by the air conditioning system of the automobile and dispensed throughout the automobile, was the type of occurrence which was explicitly extended to the future performance of the automobile pursuant to Kansas Statutes Annotated 84-2-725(2), . . .'

The narrative statement goes on to recite:

'Plaintiff argued that the exception in K.S.A. 84-2-725(2) applied to the case. In chambers, the Honorable Howard C. Kline ruled that Kansas Statutes Annotated 84-2-725 did apply; however, he refused to apply the exception under Kansas Statutes Annotated 84-2-725(2). Plaintiff timely filed its appeal to the Supreme Court of the State of Kansas on October 29, 1974. Hence, this appeal.'

In their brief defendants first contend that plaintiff's reliance on the written warranty is an attempt to expand his theories on appeal beyond those presented to the trial court, and, as such, this theory of the case is not properly presented to this court. Although the express warranty apparently was not attached to plaintiff's petition, nor included in the record on appeal, an express warranty was pled in paragraph five and breach thereof pled in paragraph seven of the original petition. This, we believe, satisfies the notice pleading requirements of K.S.A. 60-208(a). In the Author's Commentary (Gard, Kansas Code of Civil Procedure, Annotated, § 60-208(a)), Judge Gard states:

'. . . Now that discovery in its broadest scope is available to all parties alike the need for the technical pleading vanishes from the picture, not because the rule says it must but because the parties will no longer find any great need for anything more than a bare-bones pleading which outlines the nature of the claim . . . Nor are we any longer too greatly concerned with whether every allegation, considered necessary at common law, is pleaded or not, so long as the claim made fairly apprises us of its substance. Discovery will easily fill the gaps, and more effectively.' (p. 31.)

Concerning notice pleading under our Code of Civil Procedure we made this pertinent observation in Atlas Industries, Inc. v. National Cash Register Co., 216 Kan. 213, 531 P.2d 41:

'. . . Discovery in its broadest scope is available under the code of civil procedure. The need for technical pleading has vanished. We now require only a bare bones pleading which outlines the nature of the claim. . . .' (p. 222, 531 P.2d p. 48.)

In considering the propriety of summary judgments we have long adhered to the rule that pleadings are to be liberally construed in favor of the party opposing the motion. (Herl v. State Bank of Parsons, 195 Kan. 35, 403 P.2d 110.) We believe plaintiff's petition was sufficient to state a cause of action for breach of an express warranty.

The warranty, which is appended to plaintiff's brief on appeal, reads in pertinent part as follows:

'Chrysler Corporation warrants this vehicle to the first registered owner only against defects in material and workmanship in normal use as follows: (1) the entire vehicle (except tires)* for 12 months or 12,000 miles of operation after the vehicle is first placed in service, which ever occurs first, from the date of sale or delivery thereto; and (2) the engine block, head and all internal engine parts, water pump, intake manifold, transmission case and all internal transmission parts, torque converter (if so equipped), drive shaft, universal joints, rear axle and differential, and rear wheel bearings for 5 years or 50,000 miles of operation after the vehicle is first placed in service, whichever occurs first, from the date of such sale or delivery. Any part of this vehicle found defective under the conditions of this warranty will be repaired or replaced, at Chrysler's option, without charge at an authorized Imperial, Chrysler, Plymouth, or Dodge dealership.'

We are not concerned herein with other portions of the document which include disclaimer clauses and provisions relating to requirements of maintenance services, etc.

Even though defendants relied on K.S.A. 60-512 in the first instance, both parties appear to agree now that the issue is controlled by 84-2-725. Both parties suggest the case is a simple one. Plaintiff takes the position that the allegations of his petition puts his case within the scope of the four-year rule set out in subsection (2) of 84-2-725. Defendants, on the other hand, say that plaintiff's reliance on 84-2-725(2) is simply misplaced.

According...